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Does Mandatory Detention Have an Expiration Date?

By Robyn Hagan Cain on April 26, 2013 | Last updated on March 21, 2019

Under the Immigration and Nationality Act, immigration officials “shall take into custody any deportable alien who has committed various crimes” when the alien is released from detention for those crimes. Officials hold those aliens without any possibility of release while awaiting their removal proceedings. It’s known as mandatory detention.

So what qualifies as a release from detention? And do immigration officials have to wait at the jailhouse door for an alien’s release, or can they take their sweet time taking an offender into custody?

Michel Sylvain, a citizen of Haiti, entered the U.S. as a legal permanent resident in 1988. Since then he's been convicted of unlawful possession of a weapon, criminal mischief, and more than 10 drug-related crimes, and spent some time in prison. Most recently, Sylvain was arrested for possessing drugs in 2007. He pleaded guilty and received a conditional discharge. (Under New York law, a conditional discharge does not require prison or probation; generally, the punishment is community service.)

Though it had been nearly a decade since he had served time in jail, Immigration and Customs Enforcement officials arrested Sylvain in 2011, concluding that he was deportable under the INA because he was an aggravated felon with a history of drug crimes. They also decided that he was subject to mandatory detention, even though he hadn't been in custody in nearly four years.

Sylvain petitioned for a writ of habeas corpus, arguing that officials had missed the deadline for mandatory detention because they didn't detain him at the moment of his release from custody.

The district court bought Sylvain's reasoning; he received a hearing, paid bond, and was released from custody.

This week, the Third Circuit Court of Appeals reversed the lower court, finding that "dilatory officials" do not lose authority to impose mandatory detention. The appellate court reasoned that "even if the statute calls for detention 'when the alien is released,' and even if 'when' implies some period of less than four years, nothing in the statute suggests that officials lose authority if they delay."

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